In Lawrence, when Justice Kennedy surveyed practices regarding the criminalization of sodomy in comparable democracies, a notable omission from his analysis was India: it was clearly an outlier, compared to other major “free” constitutional democracies, in continuing to criminalize sodomy in 2004. This week, in NAZ Foundation v. Government of NCT of Delhi & Ors, the High Court of India effectively ended that outlier status, by delivering what will probably come to be regarded the Lawrence of India. See here.
The Delhi Court did not strike-down s. 377 of the Indian Criminal Code, but rather “read it down” so as to apply only to “nonconsensual penile non-vaginal sex (rape of a homosexual) and penile non-vaginal sex involving minors (pedophilia)”. The Delhi Court may also formally lack the capacity to bind prosecutors in the rest of the country. (This is contested.)
However, recent Canadian experience in the same-sex marriage contexts suggests that, given the reluctance of the Indian government to appeal (see here), the Delhi decision is likely at least within a couple of years to herald a new norm on gay and lesbian sex for the entire country. (On the Canadian pattern in this area, see the very useful summary by Peter Hogg – “The Constitution and Same-Sex Marriage”, 4 International Journal of Constitutional Law 712 (2006).
If this reading of the decision is right, several theories of constitutional comparison suggest that that the decision may also provide additional validation, albeit ex post, for Kennedy’s decision in Lawrence. On one theory, advocated by Jeremy Waldron, it could be seen to provide additional confirmation of an emerging global deliberative consensus that banning gay sex is morally wrong: see “Foreign Law and the Modern Ius Gentium,” 119 Harvard Law Review 129 (2005). Similarly, according to related theory developed by Eric Posner and Cass Sunstein, it could be seen to provide additional statistical confirmation of the likely correctness of this extant global consensus – by adding information about the views of one more (important) set of global minds: see “The Law of Other States, 29 Stanford Law Review 131 (2006).
The applicability of each theory also finds some support in the Delhi Court’s judgment. The Court, for example, makes extensive reference to foreign and international developments in reaching its decision – thereby providing support for an emerging deliberative consensus: see pars 53-59 of the decision. At the same time, it relies on constitutional grounds somewhat different to those relied on in the U.S. and Europe – namely both the formal equality before the law guarantee in Art 14 and anti-discrimination or equal protection clause in Art 15 of the Constitution, in addition to, not simply in conjunction with, the liberty clause in Art 21.
Even if one is not inclined to favor this kind of moral-cosmopolitan approach to constitutional comparison, in the context of a case such as Lawrence, the Indian decision could still be treated as providing some additional ex post support for the Lawrence decision, according to a “democratic theory of constitutional comparison” I set out in a recent article in Volume 46 of the American Journal of Comparative Law (2008). (In the article, I also discuss some other interesting uses the Court might have made of Indian experience, at an empirical level.)
According to this democratic theory of comparison, comparison by the Supreme Court (or other foreign appellate courts) to constitutional democracies that are closely comparable – both generally, and historically in a specific context – can help give the Court useful additional information about the likely existence and direction of social change, if any, within the U.S. in a given context. The theory is that domestic legislative trends are often a poor guide to evolving national understandings because legislative inertia often prevents legislatures from responding to changes on the ground– and within the U.S., legislative inertia of this kind tends to be highly cross-correlated, whereas across countries it is much less so.
Once one sees things in this light, the Delhi High Court decision can itself be seen as a response to legislative inertia within India – driven by internal divisions within the Congress Party and the political costs to it of addressing the issue (see the discussion on the split in the government’s stance on the issue, and the attempt by the Congress party to avoid having to respond in any way, either by way of appeal or legislative reversal: see here.
If that’s right, it then also suggests that the formal presence in 2004 of s. 377 in the Indian Criminal Code was itself likely the pure product of inertia, and so Kennedy was entitled to ignore s. 377 in his comparative analysis. At the very least, it suggests that Kennedy got the basic pace and direction of change rights when in it comes to attitudes towards gay and lesbian sexuality, even in constitutional democracies as deeply religious as the U.S. and India.